The meeting was called to order at 11:30 a.m. by Vice Chair Castillo in Chair
Murphy’s absence.

Vice Chair Castillo began the meeting by welcoming the public. He then requested
a motion to approve the minutes from the November 2003 public meeting. A motion
to approve the minutes was made by Vice Chair Steer and seconded by Vice Chair
Sessions. The motion passed unanimously.

Vice Chair Castillo asked General Counsel Charles Tetzlaff to present for
the Commission’s consideration the amendments being considered for a
vote to publish, beginning with the Sex Abuse and Child Pornography Amendment.
General Counsel Tetzlaff stated that the proposed amendment contained a number
of proposals designed to implement directives to the Commission in the PROTECT
Act related to child pornography and sexual abuse offenses. The amendment also
addressed a number of issues raised by the Child Exploitation and Obscenity
Section at the Department of Justice, case law, and calls to the Commission’s
Helpline.

General Counsel Tetzlaff noted that the PROTECT Act created mandatory minimums
and increased statutory maximum penalties for offenses relating to the trafficking
of child pornography. The proposed amendment included a number of options to
increase the base offense level for section 2G2.2, the child pornography trafficking
guideline, in response to these statutory changes. The PROTECT Act also created
new child pornography offenses which included directives to the Commission
to ensure that such offenses have appropriate guideline penalties. The proposed
amendment contained a number of options for addressing these new offenses.
Because the PROTECT Act increased the statutory maximum penalties for simple
possession of child pornography offenses, changes were proposed in § 2G2.4,
the child pornography possession guideline. In addition, the proposed amendment
contained an option to consolidate §§ 2G2.2 (Trafficking in Material
Involving the Sexual Exploitation of a Minor; Receiving, Transporting, Shipping
or Advertising Material Involving the Sexual Exploitation of a Minor; Possessing
Material Involving the Sexual Exploitation of a Minor with Intent to Traffic)
and 2G2.4 (Possession of Materials Depicting a Minor Engaged in Sexually Explicit
Conduct) into one guideline. A number of options with alternative base offense
levels and enhancements for distribution or engaging in a pattern of activity
also were proposed.

The amendment proposed increases in the base offense level and new enhancements
for § 2G2.1 (Sexually Exploiting a Minor by Production of Sexually Explicit
Visual or Printed Material; Custodian Permitting Minor to Engage in Sexually
Explicit Conduct; Advertisement for Minors to Engage in Production) as a result
of the PROTECT Act changes to both mandatory minimum and statutory maximum
penalties. In addition, three issues for comment were included.

General Counsel Tetzlaff stated that the proposed amendment would create a
new guideline in § 2G1.3 in an effort specifically to address cases involving
travel and transportation of minors for illegal sexual activity. Such an approach
would allow this new guideline to address the travel cases, with § 2A3.2
(Criminal Sexual Abuse of Minor Under the Age of Sixteen Years (Statutory Rape)
or Attempt to Commit Such Acts), to which these cases presently are cross referenced,
more specifically targeting the statutory rape cases, most of which involve
Native American defendants. Such an approach was recommended by the Commission’s
Ad Hoc Advisory Group on Native American Sentencing Issues. In addition, the
proposed amendment would refer the offense of using a misleading domain name
on the Internet, 18 U.S.C. § 2252B, a new offense created under the PROTECT
Act, to § 2G3.1 (Importing, Mailing, or Transporting Obscene matter; Transferring
Obscene Matter to a Minor) and proposed a number of enhancements.

In an effort to resolve a circuit conflict, the amendment proposed to amend
those guidelines dealing with the imposition of conditions of probation and
conditions of supervised release by adding a condition limiting or prohibiting
the use of a computer if the defendant was convicted of certain sexual abuse
or sexual exploitation offenses and either used, or the offense involved, the
use of a computer.

Finally, in response to another directive in the PROTECT Act, amendments were
proposed to the criminal sexual abuse guidelines to increase penalties involving
sexual contact or sexual abuse of a ward, including two issues for comment
regarding pattern of activity issues and whether an incest enhancement should
be considered.

General Counsel Tetzlaff then stated that a motion would be in order to publish
for comment this package of amendments relating to child pornography and sexual
abuse of minors, including those changes authorized today, with a 60-day comment
period, and with staff being authorized to make technical and conforming changes
as necessary.

Vice Chair Sessions so moved to publish the package of amendments relating
to child pornography and sexual abuse of minors. Vice Chair Steer seconded
the motion. The motion passed unanimously by roll call vote.

General Counsel Tetzlaff stated that the next package of proposed amendments
addressed offenses involving public corruption. Part One proposed to consolidate §§ 2C1.1
(Offering, Giving, Soliciting, or Receiving a Bribe) and 2C1.7 (Fraud Involving
Deprivation of the Intangible Right to the Honest Services of Public Officials).
Part Two proposed to consolidate §§ 2C1.2 (Offering, Giving, Soliciting,
or Receiving a Gratuity) and 2C1.6 (Loan or Gratuity to Bank Examiner, or Gratuity
for Adjustment of Farm Indebtedness, or Procuring Bank Loan, or Discount of
Commercial Paper). This proposed amendment would move away from a guideline
structure that relies heavily on monetary harm to determine the offense severity.
While the proposed amendment generally would provide increased punishment for
all bribery and gratuity offenses, it also would provide enhancements in both
consolidated guidelines to address some of the aggravating factors that are
involved in public corruption cases. The proposed amendment would increase
the base offense level for all bribery and gratuity cases from 10 to 12 levels
for bribery cases and from 7 to 9 levels for gratuity cases. Under a consolidated § 2C1.1,
18 U.S.C. §§ 1341-1343 offenses, currently sentenced under § 2C1.7,
would be referenced in Appendix A (Statutory Index) to § 2C1.1.

The proposed amendment would make two major changes to the current "loss" and "public
official" enhancements in both proposed consolidated guidelines. First,
it would make the enhancement cumulative. Second, the proposed amendment proposes
two new enhancements that focus on public officials. The first would modify
the current "high-level or sensitive position" enhancement by providing
a 2 to 4 level increase, and in §§ 2C1.1 and 2C1.2, minimum offense
levels of 18 and 15, respectively, if the offense involved an unlawful payment
for the purpose of influencing an official act of a public official in a high
position of public trust. The corresponding application note would define public
officials in high positions of public trust and include jurors in the definition.
The second new enhancement pertaining to public officials would provide a 2
to 4 level increase if the defendant was a public official at the time of the
offense. The proposed amendment also would provide a new 2 to 4 level enhancement
if the offense involved an unlawful payment (1) to a United States Customs
Border Protection Inspector; (2) to obtain a passport or a document relating
to naturalization, citizenship, or legal entry or resident status; or (3) to
obtain a government issued identification document. The proposed amendment
would provide a definition of "public official" and include former
public officials in that definition. Also, it would make clear that an unlawful
payment may be anything of value, not necessarily a monetary payment. Several
issues for comment also were included.

General Counsel Tetzlaff stated that a motion would be in order to publish
this package of public corruption amendments for public comment, including
those changes which the Commission made today, along with several issues for
comment, all with a 60-day comment period, and with staff being authorized
to make technical and conforming changes, if required.

Vice Chair Steer so moved to publish the package of amendments relating to
public corruption. Vice Chair Sessions seconded the motion. The motion passed
unanimously by roll call vote.

General Counsel Tetzlaff then addressed the proposed drug amendment which
would make a number of amendments to §§ 2D1.1 and 2D1.11 and Appendix
A. First, the proposed amendment addressed section 608 of the PROTECT Act by
increasing the offense levels for GHB, a schedule I depressant, and GBL, a
precursor for GHB. The proposed amendment provided two options for increasing
the penalties for GHB in the Drug Equivalency Tables of Application Note 10
of § 2D1.1 and two options for increasing the penalties for GBL in § 2D1.11.

Second, the proposed amendment would add to Application Note 5 a reference
to controlled substance analogues by providing that any reference to a particular
controlled substance also includes any analogue of that controlled substance,
unless otherwise provided. Third, the proposed amendment would correct a technical
error in the Drug Quantity Table of § 2D1.1 with respect to Schedule III
substances. Fourth, the proposed amendment would update the statutory references
in § 2D1.11(b)(2) and accompanying commentary to conform to statutory
redesignations. Fifth, the proposed amendment would add White Phosphorus and
Hypophosphorous Acid to the Chemical Quantity Table in § 2D1.11(e). Sixth,
the proposed amendment would modify Appendix A (Statutory Index) by eliminating
a reference to a nonsubstantive criminal provision.

The proposed amendment included four issues for comment regarding (1) offenses
involving anhydrous ammonia; (2) an enhancement for distribution of controlled
substances and other illegal substances over the Internet; (3) drug facilitated
sexual assault; and (4) a circuit conflict pertaining to Application Note 12
of section 2D1.1, which was most recently noted in United States v. Smack.

Finally, the package included an amendment to repeal the current "mitigating
role cap" at section 2D1.1(a)(3) and replace it with an alternative approach.
The proposed replacement would provide a gradually increasing mitigating role
reduction based on drug quantity base offense levels under §§ 2D1.1
and 2D1.11. This alternative approach would maintain the current distinctions
among mitigating role defendants, rather than capping the drug quantity base
offense level at level 30 for all qualifying defendants. This approach would "compress" the
effect of increasing drug quantity above level 30, rather than capping it at
that level. A broad issue for comment also was included.

General Counsel Tetzlaff stated that a motion would be in order to publish
this package of drug amendments, including those revisions made today, with
a 60-day comment period and with staff being authorized to make technical and
conforming changes, if required.

Ex Officio Commissioner Richter inquired whether the Commission could consider
any amount of GHB between the one liter referenced in option one and the five
liters in option two for the amendment to the Drug Equivalency Tables. General
Counsel Tetzlaff confirmed that the amendment as drafted would preserve consideration
of any amount between one and five liters. Mr. Richter also stated that the
Department of Justice continued to advocate a general repeal of the mitigating
role cap. He expressed the Department’s hope to provide more information
during the comment period concerning this issue.

Vice Chair Castillo stated that his vote to publish the proposed amendments
would not indicate his approval of the change to the mitigating role cap. Vice
Chair Sessions stated that he was concerned about the impact of the alternative
approach to the mitigating role cap on low level offenders. Commissioner O’Neill
remarked that although he would vote in favor of the issues for purposes of
publication, the Commission needed to consider further whether the intended
goals of the amendments could be reached by other means.

Vice Chair Steer moved to publish the package of amendments relating to drugs,
including today’s revisions, all with a 60-day comment period and with
staff authorized to make technical and conforming changes, if needed. Commissioner
Hinojosa seconded the motion. The motion passed unanimously by roll call vote.

General Counsel Tetzlaff then addressed the proposed amendments to the homicide
and assault guidelines which were intended to address longstanding proportionality
concerns and to implement the congressional directive in the 21st Century Department
of Justice Appropriations Authorization Act. First, the amendment proposed
increases in the base offense levels for second degree murder, voluntary manslaughter,
and involuntary manslaughter in order to address proportionality issues among
the homicide guidelines and between the homicide guidelines and other offense
guidelines, such as kidnapping and the production of child pornography. The
amendment also proposed to add a special instruction in the involuntary manslaughter
guideline, § 2A1.4, that if the offense involved involuntary manslaughter
of more than one victim, multiple counts should be applied as if the involuntary
manslaughter of each victim had been contained in a separate count of conviction,
in order to ensure incremental punishment for multiple victims. An issue for
comment was included regarding whether such an instruction should be added
to each of the other homicide guidelines.

Second, the amendment proposed a number of changes to the assault guidelines
and the Chapter Three adjustment relating to official victims in response to
a congressional directive contained in the 21st Century Department of Justice
Appropriations Authorization Act. The Act directed the Commission to provide
an appropriate sentencing enhancement for offenses involving assaulting or
threatening a federal judge or any other official described in section 111
or 115 of title 18, United States Code. The Act also increased a number of
the statutory maximum terms of imprisonment for offenses committed against
certain federal officials. The changes proposed to implement the Act also would
complement the proposed amendments to the homicide guidelines. Issues for comment
were included regarding whether the base offense level in the assault guideline
should be reduced, whether the aggravated assault guideline should contain
an enhancement for the involvement of a dangerous weapon, whether the assault
guidelines should be consolidated, and whether the Chapter Three adjustment
for official victims should provide a tiered approach.

General Counsel Tetzlaff stated that a motion would be in order to publish
for comment this package of homicide and assault guideline amendments, to include
changes made today, all with a 60-day comment period and with staff being authorized
to make technical and conforming changes, if required.

Vice Chair Steer so moved and Vice Chair Sessions seconded the motion. The
motion passed unanimously by roll call vote.

General Counsel Tetzlaff then addressed the proposed amendment that would
create a new guideline at §2K2.6 (Possessing, Purchasing or Owning Body
Armor by Violent Felons) in response to the new offense at 18 U.S.C. § 931
created in the 21st Century Department of Justice Appropriations Authorization
Act, which prohibited persons with a prior state or federal felony conviction
for a crime of violence from purchasing, owning or possessing body armor. The
amendment proposed possible base levels of 8, 10, or 12 for the new guideline
and an enhancement of 4 levels if the armor was used in connection with "a
crime of violence" or "drug trafficking crime" or "another
offense." It included an application note to address the interplay with §3B1.5
(Use of Body Armor in Drug Trafficking Crimes and Crimes of Violence).

General Counsel Tetzlaff then stated that a motion would be in order to publish
for comment the body armor guideline amendment, with a 60-day comment period
and with staff being authorized to make technical and conforming changes, if
required.

Vice Chair Sessions so moved and Commissioner Hinojosa seconded the motion.
The motion passed unanimously by roll call vote.

General Counsel Tetzlaff then addressed the miscellaneous amendments package
consisting of ten amendments. One of the ten proposed amendments would make
clear that the two level enhancement for violation of a prior judicial order
in the fraud/theft guideline is defendant based and not offense based. Another
proposed amendment to the fraud/theft guideline proposes would expand the special
multiple victim rule for offenses involving stolen United States mail to include
mail collection and delivery units that serve multiple postal customers. Another
proposed amendment would make the two level enhancement at §2B1.1(b)(9)
applicable to offenses involving authentication features.

In light of the new substantive offense in the PROTECT Act for the use of
a minor in crimes of violence, another proposed amendment would creates a new
guideline at §2X6.1 (Use of a Minor to Commit a Crime of Violence) directing
the court to increase by two, four, or six levels the offense level from the
guideline applicable to the offense of which the defendant was convicted if
the offense involved the use of a minor. An issue for comment also was included.

Another proposed amendment sought to conform the definition of "crime
of violence" in §4B1.2 to the definition provided in §2L1.2
by including a specific reference to statutory rape and sexual abuse of a minor.
The proposed amendment also would add to the definition of "crime of violence" possession
of a sawed-off shotgun and other firearms such as silencers, machine guns,
and destructive devices. Another proposed amendment sought to update Chapter
Six and, in particular, would incorporate amendments made to Rules 11 and 32
of the Federal Rules of Criminal Procedure, effective December 1, 2002.

General Counsel Tetzlaff indicated that a motion would be in order to publish
for comment this package of miscellaneous amendments, all with a 60-day comment
period and with staff being authorized to make technical and conforming changes,
if required.

Commissioner Horowitz so moved and Commissioner O’Neill seconded the
motion. The motion passed unanimously by roll call vote.

General Counsel Tetzlaff stated that in its annual submission to the Commission
dated August 1, 2003, the Department of Justice recommended that guideline
penalties be increased if the offense involved the use or attempted use of
a destructive device known as the man-portable air defense system (MANPADS).
MANPADS are portable rockets and missiles that pose particular risks due to
their portability, potential range, accuracy, and destructive power. The Commission
had before it a proposed amendment to address that concern by increasing the
enhancement in §2K2.1(b)(3) for involvement of these types of destructive
devices from two levels to as many as seven levels and correspondingly increasing
the maximum cumulative offense level in the guideline from level 29 to level
34. An issue for comment followed regarding whether the increase should pertain
to all destructive devices within the meaning of 26 U.S.C. § 5845(f) or
only to MANPADs and similar weapons, or to some other subcategory of destructive
devices, or whether there should be graduated increases for different kinds
of destructive devices.

Similarly, the Department of Justice urged the Commission to increase guideline
penalties for attempts and conspiracies to commit certain offenses if those
offenses involved use of MANPADS or similar destructive devices. In response
to this concern, the amendment proposes to amend the special instruction in §2X1.1(d)
to prohibit application of the three level reduction for attempts and conspiracies
for these offenses generally, and not just in the context of the use of MANPADS
or similar destructive devices. Three issues for comment were included.

General Counsel Tetzlaff stated that a motion would be in order to publish
for comment this MANPAD amendment, as revised by the Commission today, along
with the issues for comment, all with a 60-day comment period and with staff
being authorized to make technical and conforming changes, if required.

Commissioner Horowitz suggested that instead of bracketing the maximum cumulative
offense level in §2K2.1 at level 34, the Commission should first consider
whether there should be an increase to the maximum cumulative offense level.
He also raised a question as to whether the statutory maximum applies in these
circumstances. Vice Chair Steer stated that there should be further consideration
and investigation in the firearms category regarding differences among destructive
devices. Ex Officio Commissioner Richter thanked the Commission and staff for
their efforts to address this area.

General Counsel Tetzlaff then stated that the Department of Justice requested
that the Commission revise the guideline treatment of transportation of hazardous
materials under §2Q1.2 (Mishandling of Hazardous or Toxic Substances
or Pesticides; Recordkeeping, Tampering and Falsification; Unlawfully Transporting
Hazardous Materials in Commerce), which was originally intended to cover
pollution-type cases, not the catastrophic occurrence that could occur in
the transporting of hazardous materials. He stated that Commission staff
met with the Department of Justice Environmental Crimes Section, which recommended
the creation of a separate guideline for hazardous material transportation
cases. Commission staff had concluded that there were numerous and complex
issues raised by this proposal, but at this stage a number of issues for
comment should be published. In the meantime the Commission and staff could
consider what kind of time frame would be appropriate to address this issue.

General Counsel Tetzlaff stated that a motion would be in order to publish
the issues for comment relating to hazardous materials, with a 60-day comment
period and with staff authorized to make technical and conforming changes,
if required.

Ex Officio Richter expressed his appreciation to the Commission and staff
for their attention to this area.